`
`Yes, sir.
`
`And that stands for instant secure connect?
`
`believe that's correc , yes, sir.
`
`And that's also describing your
`
`inventions,
`
`correct?
`
`A.
`
`Q.
`
`Yes, sir.
`
`And that was another name we used.
`
`And despite the fac- that you had this
`
`information that the federal technology managers wanted
`
`to spend money on internet security and information
`
`technology,
`
`the government simply didn'
`
`fund your
`
`e "ort or YOJI
`
`invention, after you talxed to the
`
`Federal Aviation Administration;
`
`is _ha- right?
`
`A.
`
`That's correct.
`
`Q.
`
`What happened after this mid—September
`
`'ieframe, as I understand it,
`
`is that your project at
`
`SAZC basically ran out o; money around October or so o:
`
`2001;
`
`is that right?
`
`A.
`
`Q.
`
`That's correct, yes, sir.
`
`And not much happened a_-er October 2001 with
`
`respect
`
`to this project until abo '
`
`the middle or so o:
`
`2002;
`
`is that right?
`
`A.
`
`Q.
`
`Yes, sir,
`
`that's true.
`
`Okay. Around that period of
`
`time, you were
`
`involved in some discussions with a company called
`
`SafeNet about
`
`taking a license to your technology;
`
`is
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1701
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1701
`
`
`
`l4
`
`that correct?
`
`A.
`
`Q.
`
`Yes, sir.
`
`You were one o:
`
`the people, not
`
`the only
`
`person, but one o:
`
`the people that was
`
`involved in that
`
`e "ort with SafeNet;
`
`is that right?
`
`A.
`
`Q.
`
`Yes,
`
`I was.
`
`"t you would take a look at 3199,
`
`.
`
`fendant's
`
`Exhibit 3l99.
`
`And, sir, you'll see towards the top there are
`
`"e o" e—mails, and you are copied on the lower
`
`It's talking about
`
`some SafeNet deal points.
`
`Do you see that?
`
`Yes, sir.
`
`And this is dated in April o: 2003, correct?
`
`2002.
`
`Did I say '3?
`
`I apologize.
`
`Yes, sir.
`
`April o: 2002.
`
`Thank you.
`
`you go to the last page,
`
`there are a set o:
`
`points :or discussion, and it appears from these points
`
`that someone at SAZC is describing reasons to do a deal
`
`with Sa_eNet a-
`
`that
`
`time, correct?
`
`A.
`
`Q.
`
`Yes, sir.
`
`One or
`
`them is that SafeNet had a track record
`
`success in internet security.
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1702
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1702
`
`
`
`l5
`
`Do you see that? That's --
`
`Yes, sir.
`
`All right.
`
`And another reason —— it's a
`
`A.
`
`Q.
`
`little farther down, but it's the second to last
`
`paragraph —— another reason is —— is —— was the simple
`
`reason that no other company had come forward with an
`
`o "er
`
`to spend their own money on a significant
`
`development e
`
`'orL,
`
`such as required to develop more
`
`instant secure connect, or ZSC technology, correct?
`
`A.
`
`Q.
`
`Yes, sir.
`
`So a deal was done in the middle o:
`
`between SafeNet and SAZC, correct?
`
`A.
`
`Q.
`
`That sounds right, yes, sir.
`
`And as I understand it, SafeNet, under that
`
`agreement, had an option under which it could
`
`unilaterally terminate the license.
`
`That's your understanding, right?
`
`I believe that's correct, yes, sir.
`
`They could essentially terminate the license,
`
`A.
`
`Q.
`
`as you understood it,
`
`for any reason or no reason at
`
`all.
`
`They COJld simply turn it down?
`
`A.
`
`Q.
`
`That's my understanding, yes, sir.
`
`Now in the process of
`
`the steps following the
`
`;
`
`the license agreement,
`
`SAZC gave some
`
`:ion to SafeNet, right?
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1703
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1703
`
`
`
`l6
`
`A.
`
`Q.
`
`Yes, sir, we did.
`
`One o:
`
`the things that you gave to SafeNet was
`
`the source code for the software that used your patented
`
`technology, right?
`
`A.
`
`Q.
`
`Yes, we did.
`
`They had access to the —— essentially the
`
`secret
`
`information that was
`
`the set o:
`
`instructions
`
`the compu-er
`
`to jollow in executing and implementing
`
`your
`
`inventions, right?
`
`A.
`
`That's correct.
`
`Q.
`
`So they had every —— a full and fair
`
`opporLuni-y -o look at that code and see what
`
`they
`
`thought o_ i
`
`, right?
`
`A.
`
`Q.
`
`Yes, sir,
`
`they did.
`
`And therea‘ter, atter getting that code and
`
`having an opportunity to review it, SafeNet decided to
`
`terminate the license, right?
`
`A.
`
`Q.
`
`correct?
`
`Yes, sir.
`
`They decided not
`
`to pursue your
`
`inventions,
`
`A.
`
`That's correct.
`
`Q.
`
`And decided to terminate the license without
`
`paying any royalties or money whatsoever to SAZC,
`
`correct?
`
`A.
`
`That
`
`is correct, yes, sir.
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1704
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1704
`
`
`
`l7
`
`Thank you very much, Dr. Short.
`
`M .
`
`%O <OW:
`
`I pass the witness.
`
`T 3 CO QT: All righ . Redirect?
`
`M‘.
`
`?Y:
`
`Thank you, Your Honor.
`
`M .
`
`%O <OW:
`
`And actually, Your Honor,
`
`i:
`
`may, one housekeeping matter.
`
`We had marked two illustrative exhibits,
`
`which we'd simply like to enter into the record as
`
`illustrative exhibits.
`
`These are ——
`
`T E COJQT: What are the numbers?
`
`M<.
`
`%O <OW:
`
`"'lustrative ~— Defendant's
`
`"llustrative ixhibit
`
`1 and Defendant's "
`
`'ustrative
`
`ixhibit 2.
`
`Those were the https example from Dr.
`
`Short's illustration and also the V?N illustration
`
`Dr. Short.
`
`Any objection?
`
`No, Your Honor.
`
`CO
`
`:
`
`5e admitted.
`
`M<.
`
`%O
`
`:
`
`Thank you.
`
`MR. CAW HY:
`
`And on that subject, Your
`
`Honor, we're going to mark the boards with the red ink
`
`on them ?lainLi
`
`'s Demonstrative ?XhibiZS 1
`
`through 5.
`
`THE COUQT: Okay.
`
`They are admitted.
`
`13 {fiCl
`
`fiXAM NAl ON
`
`BY MR. CAWLI
`
`:
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1705
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1705
`
`
`
`l8
`
`Q.
`
`Just a few questions, Dr. Short, because
`
`think —— I
`
`think maybe there was
`
`a little bit o:
`
`information that wasn't covered in some o.
`
`-he questions
`
`that you were just asked that it's important that we
`
`hear to understand the rest of
`
`-he story.
`
`Firs- o" a'l, on ?lainLi "s ixhibit 983,
`
`those are the —— -ha-'s the Microsoft document that you
`
`blew up on big boards and wrote on with red ink, right?
`
`A.
`
`Q.
`
`Yes, sir.
`
`In your view,
`
`is that document a fair example
`
`of how people had to set up V?Ns back in that timeframe,
`
`the year 2000?
`
`A.
`
`Yes, sir.
`
`Q. Well, we
`
`saw in that document
`
`wasn't —— Microsoft didn't recommend Lha
`
`remote access.
`
`What do you understand remote access is?
`
`A.
`
`My understanding for a remote access is that
`
`you had an average user who had their laptop or desktop
`
`at home.
`
`Q.
`
`A.
`
`Q.
`
`So why wouldn't it be used for remote access?
`
`It was
`
`just —— it would be too hard.
`
`Okay.
`
`So that's —— basically, you testified
`
`earlier it was too hard for average people to use,
`
`like
`
`remote users, right?
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1706
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1706
`
`
`
`l9
`
`Yes, sir.
`
`What was it used for?
`
`A.
`
`It was used primarily for connecting --
`
`interconnecting networks.
`
`.ike i- you had two o "ices
`
`that were remotely located from each other and you
`
`wanted to connect
`
`them,
`
`like you had a virtual network
`
`between them,
`
`then you could set up each side and
`
`establish a V?N between those two networks.
`
`So you
`
`WOJld have network engineers doing that.
`
`Q.
`
`Okay.
`
`Then you were asked some questions
`
`:
`
`a di'”erent way of setting up a V?N back then,
`
`thing called 991?.
`
`Do you remember that?
`
`Yes, sir.
`
`And you were shown some documents that seemed
`
`A.
`
`Q.
`
`to create the impression that that was easy using 9919?
`
`Yes, sir.
`
`Let's take a look at that document again,
`
`Defendant's Exhibit 3121.
`
`This is the document that Microsoft's lawyer
`
`showed you that had easy in it, right?
`
`A.
`
`Q.
`
`Yes, sir.
`
`Let's look at ?age 7 where that appears first,
`
`that bold —— that's a little bit more than halfway down
`
`the page. Right there.
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1707
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1707
`
`
`
`20
`
`And let me read it to you: Microsott virtual
`
`private networks have been designed to make their
`
`implementation easy for network administrators.
`
`Who are network administrators?
`
`Typically,
`
`these are network engineers,
`
`the
`
`was talking about.
`
`Q.
`
`Okay.
`
`And let's go to the next place in this
`
`document that Microsoft's lawyer pointed you to.
`
`?age
`
`ll.
`
`want
`
`to find the language that says that
`
`setting up a V?N is easy. Right
`
`there: Setting up a
`
`V?N on Windows NT Server 4.0 is easy.
`
`Right?
`
`Yes, sir.
`
`You were shown that sentence by Microsof
`
`Yes, sir.
`
`Well,
`
`let's skip over the next sentence that
`
`talks about considering a special case or use of ?AS,
`
`and let's highlight the sentence that follows that.
`
`As a result, setting up a V?N using -91-
`
`involves many o:
`
`the same steps an ZS administrator
`
`takes when setting up a server to accept dial—up
`
`networking connections via RAS.
`
`What does that tell us?
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1708
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1708
`
`
`
`2l
`
`A.
`
`The way I read that,
`
`an ZS administrator is
`
`like a network engineer.
`
`Q.
`
`Have you seen a Microsoft document that
`
`describes those steps?
`
`A.
`
`Yes, sir.
`
`Q. Well,
`
`let me
`
`show you a document that
`
`Microsoft's lawyer did not
`
`show you in your
`
`cross—examination, even though it is one o
`
`exhibits.
`
`It's 3021.
`
`What's this?
`
`This is an instruction manual,
`
`I believe,
`
`MR. CAWLEY:
`
`"f we can highlight that
`
`language that says installing, configuring, et
`
`Q.
`
`(By Mr. Cawley) So this tells us it's an
`
`:ruction manual aboit how we're going to install,
`
`figure, and use .919, right?
`
`A.
`
`Q.
`
`document.
`
`Yes, sir.
`
`So let's go to '
`
`‘ this Microso’
`
`Is that an index or '
`
`: contents of
`
`the
`
`teps that you have to follow '
`
`ip a V?N using
`
`_:’l_J?
`
`A.
`
`Yes,
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1709
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1709
`
`
`
`22
`
`Q.
`
`And many of
`
`these steps, as we can see from
`
`the numbers in the right—hand side,
`
`those refer to page
`
`numbers of
`
`the manual?
`
`Yes, sir.
`
`So you have to go through all these steps,
`
`which have multiple pages.
`
`Is that accurate?
`
`Yes, sir.
`
`You were also asked some questions about
`
`the
`
`A.
`
`Q.
`
`demonstration you gave to the jury in Court, and that
`
`when you got your computers, when you bought compaters
`
`so you could be able to demonstrate that to the jiry,
`
`you had to install your software.
`
`Do you remember that?
`
`A.
`
`Yes, sir.
`
`Q. Well, Dr. Short, does any software have to be
`
`installed on a computer to be used?
`
`Yes, sir.
`
`It's not any good in the box,
`
`is it?
`
`That's correct.
`
`Now,
`
`it is possible,
`
`isn't it, as many people
`
`have done,
`
`that sometimes when you buy a computer,
`
`someone like Dell has already installed software on it?
`
`A.
`
`Q.
`
`Yes, sir.
`
`But it's also the case that if you want
`
`to
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1710
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1710
`
`
`
`23
`
`have some additional software,
`
`like maybe a game,
`
`like
`
`maybe a word processor,
`
`like maybe something that helps
`
`you take care of
`
`taxes, or whatever it is, you have to
`
`buy -haL software and install it on your computer?
`
`Yes, sir.
`
`That's not unusual for Gabriel,
`
`is it?
`
`No, sir.
`
`And it's possible,
`
`isn't it,
`
`that i: you could
`
`find a computer—maker who was willing to do it,
`
`they
`
`could pre—install Gabriel on a computer that they sold
`
`to someone and the buyer of
`
`the computer wouldn't have
`
`to install anything?
`
`A.
`
`That's correct.
`
`Q. Microsoft's lawyer also showed you a section
`
`in the manual aboit how to get your Gabriel software
`
`registered,
`
`that you have to register the software?
`
`A.
`
`Q.
`
`A.
`
`Yes, sir.
`
`Why is that?
`
`There are a couple of reasons. One, we were
`
`running a beta,
`
`so we wanted to get
`
`information about
`
`people who were doing -he Les-ing so we would know who
`
`they were and be able to interact with them on the
`
`results of their test.
`
`Q.
`
`So when the user of Gabriel for the first time
`
`is using your beta test is going to have to register the
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1711
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1711
`
`
`
`24
`
`software, what kind of complicated information are they
`
`going to have to enter to get it registered?
`
`A.
`
`Q.
`
`A.
`
`This is after it's installed?
`
`Yes, sir.
`
`All —— all they'd have to do is —— is register
`
`their name and ask for a domain name.
`
`Q.
`
`Once it's installed, once it's registered,
`
`: does the user of your software have to do to set up
`
`'?N?
`
`A.
`
`Q.
`
`Basically what
`
`I showed in the demo, sir.
`
`Okay.
`
`Let me ask you briefly about Aventail.
`
`Microsoft's lawyer was asking you about SAZC's decision
`
`in evaluating what it was going to use for security for
`
`its subsidiary, ANX, and they were looking at your
`
`invention and they were looking at Aventail, and they
`
`chose Aventail.
`
`be'ieve the response you gave to Microsoft's
`
`lawyer was that's true, and you thought
`
`they made the
`
`right decision.
`
`A.
`
`Q.
`
`Yes, sir,
`
`I did.
`
`They didn't ask you about that,
`
`so let me.
`
`Why do you think that SAZC made the right decision in
`
`choosing Aventail over your
`
`invention a-
`
`that
`
`-ime?
`
`A.
`
`Our —— our technology was really in the very
`
`early beta stage at that point, and they were trying to
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1712
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1712
`
`
`
`25
`
`put
`
`together a system to immediately service real
`
`CUS
`
`COIHGJCS .
`
`So they needed a solid product that was
`
`tes
`
`ted and of commercial quality.
`
`So
`
`would have made the same decision.
`
`Was your product
`
`there yet?
`
`No, sir.
`
`And ‘finally,
`
`'et me ask you about SafeNet.
`
`This is
`
`the company that entered into a license
`
`agreemen
`
`-o pay 20 percen- o.
`
`'-s revenues
`
`from the
`
`invention
`
`to the owner o_
`
`:ents.
`
`Do you remember
`
`Yes, sir.
`
`But
`
`then they canceled that agreement be:
`
`A.
`
`Q.
`
`they ever paid anything under it?
`
`A.
`
`Q.
`
`That's correct.
`
`And you understand that they did that ——
`
`why --
`
`why did they do that?
`
`A.
`
`My understanding from their letter was that
`
`they had decided at that time they did not want
`
`to put
`
`the capital
`
`investment
`
`in it to productize it.
`
`Q.
`
`Because what
`
`they were licensing in the
`
`agreement was not a product,
`
`right?
`
`A.
`
`Q.
`
`A.
`
`That's correct.
`
`It was
`
`just the right to use your
`
`invention?
`
`Yes, sir.
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1713
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1713
`
`
`
`26
`
`Q.
`
`A.
`
`And where would they get a product?
`
`They would have had to do a fair development
`
`themselves.
`
`Q.
`
`So they would have to spend a bunch o:
`
`developing your
`
`idea into an invention, correct?
`
`A.
`
`Q.
`
`Yes, sir.
`
`And they eventually decided that they didn't
`
`want
`
`to do that?
`
`A.
`
`That's correct.
`
`Q.
`
`Thank you.
`
`MR. CAWLI
`
`:
`
`I'll pass the witness, Your
`
`RT:
`
`Any recross?
`
`&OW: Yes, Your Honor. Very
`
`%ROW:
`
`Q.
`
`Dr. Short,
`
`in response to the questions jus'
`
`posed to you, you were asked some questions about 991-.
`
`Do you recall that?
`
`Yes, sir.
`
`You were asked some questions about
`
`A.
`
`Q.
`
`Exhibit 3121, which is the Windows NT server white paper
`
`that talks about 9919.
`
`Do you recall that?
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1714
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1714
`
`
`
`27
`
`1
`
`2
`
`3
`
`4
`
`.
`
`.
`
`.
`
`.
`
`Yes, sir.
`
`Do you still have that
`
`in
`
`Yes, sir.
`
`Now,
`
`let me ask you about a page o: this
`
`5 exhibit that VirnetX's lawyer didn't ask you about on
`
`6 redirect examination, all right?
`
`7
`
`8
`
`9
`
`10
`
`‘1
`
`12
`
`13
`
`14
`
`L5
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`Would you please turn to
`
`And if you look towards --
`
`Yes.
`
`?lease look towards the bottom where there is
`
`A.
`
`Q.
`
`‘erence --
`
`A.
`
`I'm sorry.
`
`I have the wrong document here.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`.
`
`3121, please.
`
`21?
`
`3—l—2—l.
`
`That's what I've got.
`
`And this is ?age?
`
`?lease look at ?age 12,
`
`i; you would.
`
`Okay.
`
`I'll just
`
`look here.
`
`Okay.
`
`And you'll see towards the bottom there
`
`ference where it says on the client.
`
`Do you see that?
`
`Yes, sir.
`
`And unlike on the server side, which is a side
`
`25
`
`that's written for administrators and others,
`
`the client
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1715
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1715
`
`
`
`28
`
`side is talking about
`
`the side o:
`
`the V?N where the
`
`client actually enters a domain name into a computer,
`
`hits enter, and a connection is created, right? That's
`
`the side we're talking about here?
`
`A.
`
`Q.
`
`Yes, sir.
`
`And what this says,
`
`;or -91-
`
`from the client's
`
`side,
`
`is that V?N setup in use on the client is also
`
`easy.
`
`That's what it says, doesn't it?
`
`Yes, sir.
`
`And it says that when .919 support
`
`is provided
`
`—— now,
`
`let me pause there.
`
`An "S9 is a service like ——
`
`EXCUSG me .
`
`That's fine. Are you alright?
`
`Yes, sir.
`
`An _S9 is a company like AT&T or someone like
`
`that that provides internet service, right?
`
`A.
`
`Q.
`
`Yes, sir.
`
`It's internet service provider.
`
`So what this is saying is that when 9919
`
`support
`
`is provided by an _S9,
`
`like AT&T,
`
`for example,
`
`no change in setup is required to the client compater,
`
`correct?
`
`A.
`
`Q.
`
`Yes, sir.
`
`The user doesn't need to do anything, because
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1716
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1716
`
`
`
`29
`
`the Y 3,
`
`like AT&T or what—have—you, has taken care o:
`
`that, right?
`
`A.
`
`Q.
`
`Yes, sir.
`
`And what it goes on to say is that
`
`in that
`
`—
`situation, when you're hooked up through an _SJ
`
`I
`
`the V1
`
`support with 9919 is transparent.
`
`A.
`
`Yes, sir.
`
`Transparent
`
`to the user, correct?
`
`Yes, sir.
`
`Now, as we went
`
`through Exhibit 3021, which
`
`VirnetX's lawyer showed you,
`
`I
`
`think he just showed you
`
`the table of contents.
`
`Do you recall that?
`
`Yes, sir.
`
`Okay.
`
`Now, back in l996, you had not set up a
`
`correct?
`
`No, sir.
`
`Is that correc
`
`.
`
`is correc , yes, sir.
`
`hadn't set one up in 1997 either,
`
`No, sir, we had not.
`
`Or
`
`in '98, correct?
`
`That's correct.
`
`You had not set up a
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1717
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1717
`
`
`
`30
`
`That
`
`is correct.
`
`Thank you.
`
`MR.
`
`%O
`
`further questions.
`
`the witness.
`
`Redirect?
`
`Nothing further, Your Honor.
`
`All right.
`
`Thank you.
`
`You
`
`may step down.
`
`Thank you, sir.
`
`T I
`
`All right. Mr. Cawley, who
`
`will be your next
`
`MR.
`
`: Your Honor, may this witness
`
`be excused?
`
`THI COURT: Yes, he may.
`
`Who will be your next witness?
`
`MR. CALDWELL: Your
`
`ionor, Rlainti
`
`calls its expert, Mr. Mark Jones.
`
`Til COURT: All right. Mr. Jones.
`
`MR. CALDWELL: May we approach the bench?
`
`T I COURT: Yes, you may.
`
`(3ench conference.)
`
`MR. CALDWH.L:
`
`There is a motion in
`
`limine on the new operating system, Windows 7, and we
`
`are not going to say Windows
`
`7
`
`in:ringes. But rather
`
`than have the elephant
`
`in the room, while everybody's
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1718
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1718
`
`
`
`3l
`
`seen it on the Olympics,
`
`I want
`
`to ask why is
`
`in your analysis, and have him say that it jus'
`
`too late to be part o:
`
`the case.
`
`have not discussed this with
`
`that's why we wanted to approach.
`
`MR. BOWLRS:
`
`I
`
`think within reason,
`
`it
`
`raises a question in the jurors’ minds about why does
`
`that mean i: would be infringing,
`
`i: it's not.
`
`think just discussing it is going to raise the
`
`question.
`
`THI
`
`I
`
`think the jurors --
`
`don't go into it.
`
`Ma. cAL3wn.L: Okay.
`
`Bench conference concluded.)
`
`R. CALDWH.L: May I approach, Your
`
`3 COURT: Yes, you may.
`
`MARK JONH
`
`.1.
`
`HA Ni HE'S W lNfiSS,
`
`1
`
`OUSLY SWORN
`
`i RfiCl
`
`fiXAM NAl ON
`
`BY MR. CALDWELL:
`
`Good a_,ernoon.
`
`Good a_-ernoon, sir.
`
`Would you please introduce yoursel:
`
`My name is Mark Jones, and I
`
`fessor at
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1719
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1719
`
`
`
`32
`
`Virginia Tech.
`
`Are you a
`
`Yes, sir.
`
`A medical doctor.
`
`No, not that kind. Not
`
`the kind to do you any
`
`A ?h.
`
`.
`
`like
`
`Yes, sir.
`
`Are you a VirnetX employee?
`
`No, sir.
`
`We" Dr. Jones, why are you here today?
`
`We",
`
`"'m here because I was able to look at
`
`a
`
`-
`
`o
`
`in'ormation in the case,
`
`including confidential
`
`‘ormation, study it, and then form conclusions.
`
`And then I'm here to explain those conclusions
`
`to the jury today in a way that they can understand the
`
`issues.
`
`Q .
`
`THE COURT: Dr. Jones, you may want
`
`to
`
`get a little closer to the microphone. Not
`
`too close or
`
`it will pop. But you have a soft voice, and it's a
`
`little hard to hear you.
`
`lHfi W lNfiSS:
`
`Thank you.
`
`Q.
`
`(By Mr. Ca'dwell)
`
`"s that because we're going
`
`to dig into the technology today?
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1720
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1720
`
`
`
`33
`
`A.
`
`Q.
`
`Yes, sir.
`
`Now,
`
`just at
`
`a very, very high level,
`
`the
`
`30,000—foot
`
`level, what kinds of opinions are you going
`
`to talk about
`
`today?
`
`A.
`
`I'm here to talk about opinions related to
`
`fringement of
`
`the VirnetX's patents.
`
`Q.
`
`?rofessor Jones, we're going to get
`
`to your
`
`infringement opinions in detail. Your presentation is
`
`one o:
`
`the longer ones that Mr. Cawley alluded to in
`
`opening.
`
`But before we get
`
`into that, we need to find
`
`out a little bit about you.
`
`So how old a man are you?
`
`I'm 44 years old.
`
`Have any kids?
`
`Yes,
`
`I do.
`
`I have four children.
`
`How old are they?
`
`They are l8,
`
`l6, 8, and 8.
`
`Are the eight year olds twins?
`
`No,
`
`they're two months apart. They're both
`
`Where do you live?
`
`live in slacxsburg, Virginia.
`
`And what's in Blacksburg, Virginia?
`
`?retty much Virginia Tech.
`
`that a big town?
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1721
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1721
`
`
`
`34
`
`No, sir.
`
`Okay. Have you always lived in Virginia?
`
`A.
`
`I was born there, but shortly —— shortly a:
`
`that, we moved to the Dallas area.
`
`Q. Well, where did you live when you were a
`
`little kid when you lived in Virginia?
`
`A.
`
`I was
`
`in the Norfolk, Virginia area where my
`
`dad was stationed while he was
`
`in the Army.
`
`He had been
`
`assigned to work on the space program and was designing
`
`new nose cones for the space program.
`
`Q.
`
`A.
`
`Q.
`
`And that was
`
`in Norfolk, Virginia?
`
`Yes, sir.
`
`And how long did you live in Nor:
`
`you moved to Dallas?
`
`Oh,
`
`I was a real little kid.
`
`Just a
`
`What
`
`took you guys to Dallas?
`
`My dad had an opportunity to join the faculty
`
`engineering, and he took that opportunity.
`
`And did you go to high school
`
`in Dallas?
`
`Yes,
`
`I did.
`
`I went
`
`to Richardson High School.
`
`And then at
`
`some point, you guys moved back to
`
`Virginia?
`
`A.
`
`Yes. Dallas was getting pretty big.
`
`My
`
`parents wanted to move to a smaller town,
`
`so we moved to
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1722
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1722
`
`
`
`35
`
`Blacksburg, Virginia.
`
`Q.
`
`Your dad is a professor, and he's in
`
`3lacksburg, and we know that the only thing there is
`
`Virginia Tech,
`
`so did your dad become a professor at
`
`Virginia Tech?
`
`A.
`
`Yes, he did. He's an engineering pro:
`
`or was an engineering professor there.
`
`Q.
`
`Jumping forward several years, was there ever
`
`a time when there were two ?rofessor Joneses in the
`
`engineering department?
`
`A.
`
`Yes,
`
`there was.
`
`We overlapped for about
`
`or six years before he retired.
`
`Did you get a bunch of misdirected mail?
`
`Yes,
`
`I did.
`
`All right. Well, ?rofessor Jones, when did
`
`first think that you might want
`
`to be a teacher?
`
`A.
`
`Growing up watching my dad teach, and then my
`
`mother went back to school
`
`to become a reading
`
`specialist to help disabled —— kids that were reading
`
`disabled,
`
`learn to read. Watching both of
`
`them,
`
`admired them a lot, and it was
`
`just
`
`a natural career
`
`choice.
`
`Q.
`
`A.
`
`Carolina.
`
`So where did you go to college?
`
`I went
`
`to Clemson University in South
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1723
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1723
`
`
`
`36
`
`: did you study at Clemson?
`
`studied computer science.
`
`Q.
`
`Now, we've heard a lot about computer science,
`
`but can you kind o: tell us generally what that
`
`is?
`
`A.
`
`That's the study o: computer hardware and
`
`software and how to use those things to solve real
`
`problems.
`
`Q.
`
`So when you were at Clemson studying computer
`
`science, did you go to school full—time or did you take
`
`a job?
`
`A.
`
`Both, actually.
`
`I was going to school
`
`'—time, and I had a job working for a group o:
`
`‘essors in an Air Force research laboratory, working
`
`on networking together computers for the Air Force.
`
`also supervised dorm rooms.
`
`Q.
`
`So going to school and working two jobs, how
`
`long did it take you to get your computer science
`
`degree?
`
`It seemed like a while.
`
`It took about
`
`three
`
`fter that, did you keep going to school?
`
`A.
`
`Yes,
`
`I did.
`
`I went
`
`to Duke University in
`
`North Carolina.
`
`Q.
`
`A.
`
`What did you study at Duke?
`
`Again, computer science.
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1724
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1724
`
`
`
`37
`
`And what degree did you want
`
`to get
`
`A ?h.D.
`
`Did you have a
`
`job while you were at Duke?
`
`Yes,
`
`did.
`
`During —— during the summers,
`
`worked at NASA
`
`Dangley Research Center, and actually
`
`ended up working in the same department where my
`
`father
`
`had worked when
`
`was a little kid.
`
`Q .
`
`A.
`
`Did people remember your dad?
`
`Yeah,
`
`there were still a few people there who
`
`had worked with him.
`
`Q .
`
`think we can all probably agree that NASA
`
`has a whole bunch o:
`
`really smart people.
`
`So what did NASA want
`
`from this
`
`Duke?
`
`A.
`
`This was
`
`a couple of years after the
`
`Challenger tragedy with the space shuttle,
`
`and they were
`
`looking at ways to analyze space vehicles and how to
`
`make them safer.
`
`And
`
`was working on computer software and
`
`computer methods
`
`for using parallel computers to analyze
`
`those kinds of
`
`structures.
`
`Q .
`
`A.
`
`You mentioned parallel computing.
`
`What
`
`is that?
`
`Well, parallel computing is basically the idea
`
`taking hundreds or
`
`thousands of
`
`computers, putting
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1725
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1725
`
`
`
`them altogether, networking them together so that you
`
`can take all that power and apply it to a problem and
`
`solve it more quickly.
`
`38
`
`Did you do a dissertation?
`
`Yes,
`
`I did,
`
`in l990.
`
`Is that when you got your
`
`Yes, sir.
`
`All right.
`
`So in 1990, when you have your
`
`?h.D. and you're a newly minted Dr. Jones, did you go
`
`straight back into the university as a professor?
`
`A.
`
`No, sir,
`
`I did not.
`
`I wanted to get
`
`some
`
`real—world experience,
`
`so I
`
`took a job at Argon National
`
`Laboratory.
`
`Q.
`
`A.
`
`What
`
`is Argon National Laboratories?
`
`That's a government research facility,
`
`a
`
`Department o- ?nergy ‘acility outside o: Chicago.
`
`Q.
`
`What sort o: work did you do for Argon
`
`National Labs?
`
`A. Well,
`
`I was doing more o: this parallel
`
`computing work and applying it to problems,
`
`trying to
`
`improve the —— what we were working on,
`
`trying to
`
`improve how the country can use energy and use it more
`
`e ’iciently.
`
`And I was applying parallel computing to
`
`those problems.
`
`Q.
`
`So by the time you came in here to the
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1726
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1726
`
`
`
`39
`
`courtroom, about how long had you been working on
`
`parallel computing and related matters?
`
`A.
`
`Q.
`
`It goes back about 25 years at this point.
`
`Has your work in parallel computing and your
`
`other research work involved network security?
`
`A.
`
`Yes, sir.
`
`I've worked on multiple projects
`
`funded by the government on computer network security.
`
`Some of
`
`those projects have been funded by the National
`
`Security agency,
`
`the Air Force Research Laboratories as
`
`well as DAR?A.
`
`Q.
`
`A.
`
`What
`
`is DAR?A?
`
`DAR?A is the Defense Advanced Research
`
`?rojects Agency.
`
`Q.
`
`So you were working at Argon National Labs.
`
`When did you decide to, hey, it's time to go "ul”i11
`
`that dream of being a teacher?
`
`A.
`
`There was an older guy that
`
`I respected a lot
`
`who had been at Argon for a long time and went
`
`to the
`
`University of Tennessee.
`
`And he o
`
`'ered me a position
`
`to come and join him at
`
`the University of Tennessee, and
`
`really couldn't pass that up, and it was a lot warmer
`
`there as well.
`
`Q.
`
`What did you teach,
`
`then, at
`
`the University o:
`
`Tennessee?
`
`A.
`
`I
`
`taught computer science.
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1727
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1727
`
`
`
`And then you eventually moved to Virginia
`
`40
`
`A.
`
`Yes, sir,
`
`did.
`
`got an o "er
`
`in ‘997 to
`
`move there,
`
`a chance to be a lot closer to my
`
`family.
`
`And
`
`couldn't pass that up.
`
`Q.
`
`So did you do both research and teaching
`
`during your
`
`jobs at
`
`these universities?
`
`A.
`
`Q.
`
`A.
`
`Yes, sir,
`
`did.
`
`What has made up most o: your research?
`
`In one way or another,
`
`taking networks o:
`
`computers and computing devices and applying them
`
`- problems.
`solve important
`
`Q.
`
`Are there any really
`
`interesting projects
`
`you've been working on in recent years?
`
`A. Well,
`
`a project that
`
`I'm real excited about
`
`that
`
`I've been working on
`
`for the last lO years is
`
`something called e—textiles.
`
`Q.
`
`What are e—textiles?
`
`A. Well,
`
`e—textiles is short ‘or electronic
`
`textiles.
`
`Q.
`
`What are those?
`
`A. Well,
`
`the idea there is to take computing
`
`devices and sensors that can tell
`
`what's going on and
`
`actually putting them together in
`
`your clothing —— and
`
`putting a network o:
`
`them in your clothing and using
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1728
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1728
`
`
`
`4l
`
`that to see what's going on in the clothing.
`
`Q.
`
`It sounds probably a little strange to some o:
`
`us, but why —— why would you do something like that.
`
`What could it be used for?
`
`Well,
`
`two applications that we've worked on
`
`that
`
`I
`
`think are important.
`
`One is to monitoring o:
`
`heart patients.
`
`Say a doctor wants to get more
`
`information on the health o:
`
`a heart patient and monitor
`
`their heart,
`
`they can use this type o: clothing to have
`
`sensors for detecting what their hear-bea- is doing over
`
`time as well as the rest o: your body so that the doctor
`
`can better understand how healthy or unhealthy that
`
`person is.
`
`Q.
`
`Is that
`
`instead o:
`
`laying in a hospital bed,
`
`‘or instance, and just being monitored over a long
`
`period o:
`
`time?
`
`A.
`
`Yes, sir.
`
`And you could do —— sor- o_ allow
`
`someone to do this in their home or
`
`just as they're
`
`walking around their daily activity in clothing that
`
`is
`
`going to look and feel normal,
`
`so tha'
`
`they're not
`
`self—conscious, and the Doctor can ge' better reads in
`
`that case as well.
`
`Q.
`
`Any other health missions you're working on
`
`with your research?
`
`A.
`
`Yes, sir. With the same e—textiles, we've
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1729
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1729
`
`
`
`42
`
`been looking at or working with other faculty to monitor
`
`how people walk, and especially certain elderly people
`
`who are at risk for slip and fall and breaking a hip,
`
`for example, which can be very painful and debilitating.
`
`Our work has been trying to detect and prevent
`
`those
`
`kind o" "alls.
`
`Q.
`
`Do you weave some of
`
`these networks o:
`
`sensors
`
`into clothing?
`
`A.
`
`Q.
`
`A.
`
`Yes, sir, we do.
`
`Can you show us how you do that?
`
`Yes, I'd like to do that.
`
`So this is a picture of
`
`the electronic
`
`computer—automated loom that's in my lab that we use to
`
`weave and create these e—textile fabrics.
`
`We can put
`
`in
`
`sensors and wires as well as we put
`
`lots
`
`: regular
`
`cotton and polyester fabrics in as well.
`
`Q.
`
`Now, do you have an example o: what
`
`the
`
`clothing would look like?
`
`A.
`
`Yes, sir.
`
`So this is one of our prototype garments that
`
`is used to monitor how people walk.
`
`It has networks in
`
`it.
`
`It has lots of kind of sensors to determine how
`
`you're walking and what you're doing.
`
`Q.
`
`Now,
`
`I
`
`though: you said this clothing looks
`
`can confidently say my wife would not let me
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1730
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1730
`
`
`
`out wearing that.
`
`So what's up with the color scheme that we see
`
`43
`
`A. Well,
`
`this is normal
`
`‘or Virginia Tech.
`
`This
`
`iaroon and orange, and these are our school colors,
`
`designed this in a check pattern.
`
`And " ‘ind it
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`fashionable.
`
`Q.
`
`You took Jason Cassady's burnt orange and my
`
`Aggie maroon and combined them ——
`
`A.
`
`Q.
`
`In a very tasteful way.
`
`—— would be a tragic piece of clothing.
`
`Okay.
`
`Thank you.
`
`Thank you, Dr. Jones.
`
`Now, do others research in that area as well?
`
`A.
`
`Yes, sir they do.
`
`There are other groups
`
`working on that, bu‘
`
`I believe that we're a leader in
`
`it. We're -he jirs
`
`group that comes up when you search
`
`‘or e—texti;e online.
`
`Q.
`
`All right. Let's go back to your more general
`
`research and teaching.
`
`What kind of students do you teach? What
`
`A.
`
`I
`
`teach all kinds of students ‘rom ‘reshmen to
`
`seniors in design classes to graduate stidents.
`
`Q.
`
`A.
`
`Do you teach computer networking?
`
`Yes.
`
`I've taught classes there speci:
`
`Petitioner Apple Inc. — Exhibit 1026, p. 1731
`
`Petitioner Apple Inc. - Exhibit 1026, p. 1731
`
`
`
`44
`
`in computer networking. But at this point with the
`
`importance or computer networks and the internet,
`
`in
`
`every class I
`
`teach,
`
`I'm going to teach them about
`
`networking.
`
`Q.
`
`?rofessor Jones,
`
`is this the first time
`
`you've been retained to serve as an expert
`
`in a pa
`
`case?
`
`A.
`
`Q.
`
`No, sir, it's not.
`
`Approximately how many other times have you
`
`been retained?
`
`A.
`
`Q.
`
`I believe it's nine at this poin .
`
`Now, have you always worked jor -he party that
`
`owns the patent?
`
`A.
`
`No, sir. About hal:
`
`I've worked :or
`
`the party that owns it and hal:
`
`for the other
`
`party.
`
`Q.
`
`Now, ?rofessor Jones,
`
`I